UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petition for Review of an Order of the Federal Labor Relations Authority.
Bork and Ruth B. Ginsburg, Circuit Judges, and Gesell,* District Judge.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BORK
Petitioner, the National Treasury Employees Union , seeks review of a decision of the Federal Labor Relations Authority finding two bargaining proposals regarding the selection of employees to perform "office audits" to be nonnegotiable on the ground that their implementation would interfere with the Internal Revenue Service's right to assign work. We deny the petition to review the FLRA's decision with regard to the first proposal, grant the petition with regard to the second proposal, and remand for further proceedings. I.
The Federal Service Labor-Management Relations Act requires federal agencies and unions representing federal employees to bargain over conditions of employment. 5 U.S.C. § 7103(a)(12) (1982). This duty is limited by the Act's exclusion therefrom of certain reserved management rights, including the right "to assign work." Id. § 7106(a)(2). *fn1 Although federal agencies are not required to bargain over the substance of these reserved rights, "an agency must bargain over the procedures by which these management rights are exercised." Bureau of Alcohol, Tobacco & Firearms v. Federal Labor Relations Auth., 464 U.S. 89, 92, 78 L. Ed. 2d 195, 104 S. Ct. 439 (1983); see 5 U.S.C. § 7106(b)(2) (1982). A proposal involving the procedures to be employed by a federal agency is also nonnegotiable, however, "if its implementation would 'directly interfere with the agency's basic right . . . [as reserved] under section 7106(a) . . . .' " Department of Defense v. Federal Labor Relations Auth., 212 U.S. App. D.C. 256, 659 F.2d 1140, 1159 (D.C. Cir. 1981) (quoting American Fed'n of Gov't Employees, 2 F.L.R.A. 604, 613 (1980)), cert. denied, 455 U.S. 945, 71 L. Ed. 2d 658, 102 S. Ct. 1443 (1982).
The proposals at issue arose out of a decision by the IRS to conduct some audits of employee benefits plans in IRS district offices ("office audits") rather than at the taxpayer's place of business ("field audits"). The work performed during the office audits would be identical to that performed during the field audits and would "comewithin the position description of the employees at issue." Statement of Agency Position at 6 n.4, Joint Appendix at 30. The only difference between the two types of audits is the place where the work is to be performed. The change in practice affected employees who perform audits throughout the state of Colorado.
During collective bargaining negotiations, NTEU, the exclusive bargaining representative of IRS employees, submitted two proposals regarding the selection of employees to perform office audits. Proposal 1 provides that office audit assignments will be made first from among qualified volunteers in accordance with certain competitive procedures. If volunteers are unavailable, qualified employees will be selected primarily on the basis of inverse seniority. *fn2 Proposal 2 provides that, "absent just cause," certain union officials will be given first preference to perform the office audits before volunteers are solicited. *fn3 When the IRS refused to negotiate over these proposals, the NTEU filed a negotiability appeal with the FLRA. See 5 U.S.C. § 7117 (1982).
The FLRA found both proposals to be nonnegotiable because they would interfere with the employer's right to assign work and thus concluded that the proposals are not within the IRS' duty to bargain. National Treasury Employees Union, 17 F.L.R.A. 379 (1985). With respect to Proposal 1, the FLRA noted that "'the right to assign work includes discretion to determine when the work which has been assigned will be performed,'" id. at 380 (quoting American Fed'n of Gov't Employees, AFL-CIO, 8 F.L.R.A. 347, 377 (1982), rev'd as to other matters sub nom. Department of Justice v. Federal Labor Relations Auth., 228 U.S. App. D.C. 285, 709 F.2d 724 (D.C. Cir. 1983)), and concluded that the proposal would violate this right because
by prescribing the selection of employees to perform office audits without taking into consideration those employees' availability to perform such work, Union Proposal 1 would force management into one of two choices where the employees identified by application of the proposed procedures are engaged in ongoing or priority field audits. The Agency would either have to relieve the identified employees of their continuing assignments or delay the start of the office audits pending completion of the field assignments.
The FLRA concluded that Proposal 2 did not interfere with the IRS' ability to determine when work would be performed because it included a "just cause" exception, but found that it was nonnegotiable because it would interfere with the agency's right "'to assign work to all employees, regardless of whether they are Union officials and regardless of whether they consent.'" 17 F.L.R.A. at 381 (quoting American Fed'n of Gov't Employees, AFL-CIO, Local 2272, 9 F.L.R.A. 1004 (1982)). This petition for review followed. II.
The Act provides that decisions of the FLRA must be made in accordance with section 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706 (1982). 5 U.S.C. § 7123 (1982). Thus, the FLRA's decisions will be upheld if they are not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. When the FLRA is construing its enabling legislation, its determinations are to be accorded "considerable deference," Bureau of Alcohol, Tobacco & Firearms, 464 U.S. at 97, and a negotiability ...